Maestro Music, Inc. v. Rudolph Wurlitzer Company , 88 Ariz. 222 ( 1960 )

BERNSTEIN, Justice.

Maestro Music, Inc. (hereinafter called “Maestro”) and J. F. Cacioppo, Jr. (hereinafter called “Cacioppo”) (hereinafter collectively called “appellants”) appeal from a judgment entered against them by the Superior Court of Pima County in favor of The Rudolph Wurlitzer Company (hereinafter called “Wurlitzer”) in the sum of $36,638.68, together with attorney’s fees and interest.

Pursuant to written agreements, Maestro, during the years 1952 and 1953, acted as distributor of coin-operated phonographs and accessory merchandise manufactured by Wurlitzer. The territory covered by this distributorship, at first, included Arizona, New Mexico and West Texas but subsequently was restricted to Arizona.

By separate instrument, Cacioppo, then president of Maestro, fully guaranteed all obligations and indebtednesses then or thereafter owing from Maestro to Wurlitzer. Cacioppo waived notice of presentment, protest and demand of all obligations covered by the Guaranty, which provided that

“Wurlitzer may settle, adjust, or release in whole or in part, or extend the time for payment, or release security for, any claim against [Maestro] * *, or may release in whole or in part any other obligor, endorser or guarantor of any obligation covered by this guaranty, without the consent of [Cacioppo] * * * or notice thereof to [Cacioppo] * * *, and without affecting, impairing or diminishing the obligations of [Cacioppo] * *

On or about December 18, 1952 Maestro sold to George Greene, doing business as American Music Company (hereinafter called “Greene”). 15 Wurlitzer phonographs and other equipment which were delivered to Greene in Odessa, Texas. Maestro received in payment therefor a negotiable promissory note executed by Greene in favor of Maestro in the sum of $17,995.17. The note provided for interest at 6% per annum on the unpaid balance and “a reasonable sum (15%, if lawful) as attorney’s fees, if placed in the hands of an attorney for collection after maturity.” The phonographs and equipment were covered by a Purchase Money Chattel Mortgage, recorded in Texas. Thereafter and prior to December 31, 1952, Maestro endorsed the note to the order of Wurlitzer and by such endorsement Maestro

“hereby waive (s) presentment and demand for payment, protest and notice of non-payment and protest, and consents) that the holder hereof may, without notice to and without releasing the liability of [Maestro] * * * hereunder as unconditional endorser (s), compound or release any right against, and grant extension (s) of time to the maker(s).”

Wurlitzer paid Maestro the face amount of the note minus a sum which was retained by Wurlitzer in a reserve fund pending full payment of the note.

In early 1954, while Greene was in default on the note, the phonographs and equipment held by him were transferred, at Wurlitzer’s instigation, to J. A. and M. V. Stevenson, doing business as Mel 0 Dee Music Company (hereinafter called “Stev■enson”) in Salt Lake City, Utah. Greene paid Wurlitzer $1,500. Of this sum, $1,000 was paid to the distributor serving Utah because delivery was made into his territory; the balance of $500 was credited to Maestro’s account. Stevenson executed an Assumption Agreement whereby he assumed liability for the balance of the note endorsed to Wurlitzer. There was testimony at the trial that Maestro and Cacioppo knew of and approved the transfer of the phonographs and the allocation of the $1,500.

Three other transactions are involved on this appeal. In each, Maestro sold to Stevenson certain Wurlitzer phonographs and equipment which were secured by conditional sales contracts recorded in Arizona. Stevenson delivered to Maestro three negotiable promissory notes, in the same form as the Greene note, above, in face amounts totalling $66,878.29. Maestro endorsed these notes, in the same manner as it did the Greene note, and received the face value thereof less a reserve fund. Maestro assigned the conditional sales contracts to Wurlitzer, thereby providing that

“we [Maestro] guarantee the payment promptly when due of the amount of each and every installment payable thereunder and the payment on demand of the entire unpaid balance in the event of any default by the buyer without first requiring assignee to proceed against said buyer. We agree that assignee may audit our books and records relating to all paper assigned to it and may in our name endorse said note(s) and all remittances received, and without notice to us and without affecting our liability may release any and all rights against, enter into consolidating contracts with, and grant extensions of time of payment to the buyer. We waive presentment and demand for payment, protest or notice of nonpayment and protest, and subordinate to any rights assignee may now or hereafter have against the buyer any rights we may now or hereafter have by reason of payment to assignee of any installments payable on the contract or otherwise.”

Thereafter, Stevenson made payment on the above four notes directly to Wurlitzer, which in October 1954, because of Stevenson’s financial difficulties, agreed to extend the maturity dates of the notes by accepting less per month than originally required. On or about June 28, 1955, following Stevenson’s continuing defaults on the notes, Wurlitzer and Stevenson entered into a letter agreement which provided, in substance, that Stevenson would deliver and turn over to Wurlitzer at their then location the 100-odd coin-operated phonographs and equipment covered by the above mortgage and conditional sales contracts, and Wurlitzer would pay Stevenson the sum of $5,000. The agreement also provided that it constituted a “mutual release” of all claims and demands between Stevenson and Wurlitzer “of whatsoever nature,” including any actions on the notes, and that Wurlitzer reserved all claims and demands it may have against any other persons or corporations who may be liable on said notes, “including but not limited to endorsers and ' guarantors.”

Stevenson turned over the phonographs and equipment, as agreed, to Wurlitzer, which paid Stevenson the sum of $5,000. There was testimony that the agreement was fair and reasonable, and, by providing for the equipment to be turned over at each location, saved Wurlitzer from having to incur substantial repossession expenses. The record shows that Maestro was informed of this transaction and was offered an opportunity to repurchase the notes from Wurlitzer if Maestro preferred to make its own arrangements with Stevenson. The record does not show that Maestro approved or consented to the Wurlitzer-Stevenson letter agreement or the $5,000 payment.

Thereafter, Wurlitzer sold the repossessed phonographs to one or more of its distributors, and commenced this action against appellants. Wurlitzer computed its claim as follows: the unpaid balance of the original Greene note, $8,114.51 (which included credit for the proceeds of the sale of the phonographs and equipment covered by said note, the reserve fund, and $500 of the $1,500 paid to Wurlitzer by Greene); the unpaid balance of the three original Stevenson notes, $23,540.28 (which included credit for the proceeds from the sale of the phonographs and equipment covered by said notes, and the reserve fund); the cost of repossessing the phonographs, $5,220.05 ($3,000 of which represented Maestro’s alleged share of the $5,000 payment to Stevenson to repossess the phonographs, only about three-fifths of which were covered by the four notes involved on this appeal; the balance of $2,220.05 represented attorney’s fees and other repossession expenses). The total of $36,874.84 was reduced by the sum of $236.16, representing unearned carrying charges, leaving a net claim of $36,638.68, which, together with 15% attorneys fees and interest, was awarded in the judgment.

The judgment was supported by Findings of Fact and Conclusions of Law entered by the Superior Court following a trial held before the court without a jury. The court found, in sum, that Wurlitzer was holder in due course of each of the four negotiable promissory notes; that Maestro had waived presentment, demand for payment and protest, and all notices thereof, and had consented to Wurlitzer’s compounding or releasing any right against the maker of each note; that the notes were in default in the sums claimed by Wurlitzer; that the reserve funds and the proceeds of the sale of the phonographs, after deducting the expenses thereof, had been applied in reduction of the notes; that Maestro is liable for the net balance of the notes; and that Cacioppo is liable as guarantor of Maestro’s obligation. The court also found that the instant transactions were undertaken by Maestro “voluntarily” and not “under duress or by reason of coercion.”

Appellants Maestro and <Cacioppo have assigned eight errors on this appeal, some of which may be disposed of briefly. They claim that Wurlitzer’s operations were against public policy and amounted to business compulsion. Such contentions were re-j ected explicitly and implicitly by the Findings of Fact. On the basis of the record herein, we hold that there is no merit to the assignment of error based on such contentions.

Maestro and Cacioppo also contend that the transactions involving two of the notes were usurious, for the reason that the face amount of these notes, which bear interest at 6% per annum, includes interest totalling more than 10% of the total price of the phonographs and equipment, as computed in the conditional sales contracts securing these two notes. We reject this contention on two grounds. First, even if we assume that the term “Int.” listed on the conditional sales contracts means interest, there was no proof that such interest had not accrued by the time such contracts were executed, and was, accordingly, properly includable in the principal debt. The burden to plead and prove usury which does not appear on the face of an instrument rests on the party seeking to avoid the instrument. See Daily Mines Co. v. Catalina Consolidated Copper Co., 59 Ariz. 149, 124 P.2d 320. The trial court implicitly found, and we agree, that appellants here did not sustain that burden.

Second, the claimed usurious notes and contracts were executed in favor of Maestro, as payee, and, accordingly, any alleged excess interest was to be paid to Maestro for its own benefit. It is clear that the defense of usury is available only to the debtor or maker, and not to Maestro, the original payee and creditor. As stated in Collister v. Inter-State Fidelity Building & Loan Ass’n, 44 Ariz. 427, 439, 38 P.2d 626, 631, 98 A.L.R. 1020:

“ * * * usury laws are enacted for the protection of needy borrowers against the oppressive exactions of money lenders and the defense of usury is purely personal to the debtor and those in privity with him and they alone may avail themselves of it, or waive it and ratify the contract in which it appears.”

See also Certified Motors, Inc. v. Nolan Loan Co., D.C.Mun.App., 122 A.2d 227, where the seller-assignor of a conditional sales contract and note was sued, as here, by his assignee and claimed that the face amount of the note included unearned charges and costs which are not recoverable by judgment in favor of the assignee. In rejecting this contention the court stated that the seller-assignor

“having sold a note purporting to represent the balance of the purchase price, is in no position to say that the note in fact represented something else.” 122 A.2d at page 229.

We come next to the question of Athe effect of Wurlitzer’s agreements with Stevenson on Maestro’s (and, consequently, Cacioppo’s) obligation to Wurlitzer. The record shows that Wurlitzer, first, extended the time by which Stevenson was obligated to make payment on the notes and, subsequently, released Stevenson from all liability thereon. It is not disputed that such conduct on the part of Wurlitzer would, in the absence of the special consents of or waivers by Maestro, effectively release Maestro as endorser and guarantor. See A.R.S. §§ 44-520, 44-524, 44-525.

Here, however, Maestro not only waived presentment, demand, protests and notices thereof, but also agreed to be liable on the notes even if Wurlitzer did “compound or release any right against” the maker or did “grant extension(s) of time to the maker (s),” and agreed to be liable as guarantor of the conditional sales contracts even if Wurlitzer did “release any and all rights against, enter into consolidating contracts with, and grant extensions of time of payments to the buyer.” Such provisions are not claimed to be invalid, and are proper. See Britton, Bills and Notes, §§ 291, 293; 7 Am.Jur., Bills and Notes, § 195.

Thus, whatever may otherwise have been the effect of Wurlitzer’s agreements with Stevenson, they come within the express provisions of the three notes of which Stevenson was the maker and of the conditional sales contracts under which Stevenson was the buyer; and they do not operate to release or discharge Maestro.

Appellants’ claim that Wurlitzer’s agreements with Stevenson constituted an accord and satisfaction overlooks the point that such agreements were made with Stevenson and thus could not operate as an accord and satisfaction with Maestro, which had consented in writing to Wurlitzer’s releasing Stevenson. Further, the provision in the agreement by which Wurlitzer expressly reserved all claims and demands against “endorsers and guarantors,” negatives an intention to effect a satisfaction of Maestro’s obligations and precludes Maestro’s being discharged. See A.R.S. § 44—520.

The chattel mortgage and related promissory note, executed by Greene as mortgagor and maker and by Maestro as mortgagee and payee, require a different analysis. The note was endorsed to the order of Wurlitzer by Maestro which agreed to be liable if Wurlitzer released or granted extensions of time to the “maker (s).” So far as appears from the record the mortgage was never assigned by Greene. Although Stevenson, at the time the phonographs and equipment were delivered to him, executed an agreement with Wurlitzer assuming Greene’s original obligation, the record does not show that Greene was ever released from its obligation as maker of the note.

The result is that Greene and Maestro are the only parties liable, primarily or secondarily, on the note itself. Stevenson’s obligation arose from a separate Assumption Agreement which was not endorsed on or made part of the mortgage or note. It follows that the agreements entered into between Wurlitzer and Stevenson did not result in an alteration of the note (see A.R.S. § 44-524) and did not, without more, affect the obligations of Greene or Maestro arising under the mortgage or note. Thus, neither Greene nor Maestro was released from liability on the note or chattel mortgage as a result of Wurlitzer’s releasing or extending time to Stevenson.

We hold that Wurlitzer’s agreements with Stevenson did not release, discharge or satisfy Maestro’s obligations to Wurlitzer under the conditional sales contracts, the mortgage or any of the notes.

There remains for discussion the question of the effect of the manner in which Wurlitzer sold the repossessed phonographs and equipment. Appellants Maestro and Cacioppo claim that they were relieved from liability by virtue of Wurlitzer’s failure to comply with the resale provisions of A.R.S. § 44-319 of the Uniform Conditional Sales Act.

Appellants have limited their argument on this issue to the three conditional sales contracts, and have not urged that the resale provisions of the Uniform Conditional Sales Act are applicable to the chattel mortgage. Indeed, no contention was made at the trial or on this appeal that the chattel mortgage, recorded in Texas and covering phonographs and equipment originally located there, was subject to the provisions of the Arizona Act. Nor was evidence offered at the trial to prove the applicable statutory law of Texas, as is required (see Bache v. Bache, 33 Ariz. 45, 262 P. 11), or that under Texas law Wurlitzer had a duty to resell the phonographs in a specified manner. There is, accordingly, no basis upon which we may consider the effect on the chattel mortgage or note of Wurlitzer’s noncompliance with the resale provisions of the Arizona Uniform Conditional Sales Act.

With respect to the conditional sales contracts, A.R.S. § 44—323 provides that where there is “no resale * * * the buyer shall be discharged of all obligation.” Appellants claim that as there was “no resale” here in the manner prescribed in A.R.S. § 44-319, the buyer, Stevenson, was discharged, and Maestro, as the party secondarily liable, was likewise discharged. The record shows and, indeed, it is conceded that the sale made by Wurlitzer did not conform to the provisions of the Uniform Conditional Sales Act. Thus, in the absence of the special circumstances hereinafter discussed, Maestro would be relieved from liability, because the absence of a resale as prescribed by the Uniform Conditional Sales Act would discharge both Stevenson (see A.R.S. § 44—323) and Maestro (see A.R.S. § 44-520). See also Commercial Credit Co. v. Phoenix Hudson-Essex, Inc., 33 Ariz. 56, 61, 262 P. 1; Ulster Finance Corp. v. Schroeder, 230 App.Div. 146, 243 N.Y.S. 682, 684.

The question appropriate to the instant case is whether—where the buyer has validly waived resale or was released from liability prior to the time a resale would otherwise have been required, or indeed, where the seller-assignor has, in effect, consented to be liable in the absence of a statutory resale—the seller-assignor is liable despite the noncompliance with the resale provisions of the Uniform Conditional Sales Act. We conclude that the seller-assignor continues to be liable in such circumstances.

The essential point is that the resale provisions, here involved, of the Uniform Conditional Sales Act confer rights only on the buyer under a conditional sales contract. As stated in Bogert, Commentaries on Conditional Sales, 2A Uniform Laws Annotated, § 117: ■

“It was the intention of the draftsmen of the [Uniform Conditional Sales] Act to provide in sections 19 to 23 [containing the resale provisions enacted in A.R.S. §§ 44—319—323] a foreclosure sale system, for the purpose of protecting the equity of the conditional buyer and insuring the return to him of such proportion of his part payments as are equitably due him”. (Emphasis added.)

In O. S. Stapley Co. v. Rogers, 25 Ariz. 308, 313, 216 P. 1072, 1074, this Court stated:

“The purpose of the law was to protect the buyer, the seller in such transactions not usually needing protection.”

See also Waverly, Sayre & Athens Transp. Co. v. General Motors Truck Co., D.C., 36 F.Supp. 285, 286, where the court said:

“The provisions for resale * * * are there for the protection of conditional vendees from oppression by their vendors * *

Nowhere in the resale provisions, or indeed in any part of the Act, is a guarantor, endorser or seller-assignor, such as Maestro, referred to or accorded any rights or benefits. Thus, only the buyer is entitled to personal notice of the sale (A.R.S. § 44— 319) ; only the buyer may demand a resale (A.R.S. § 44-320) ; and only the buyer is entitled to the balance of the proceeds after the resale (A.R.S. § 44-321).

The statutory definition of a “buyer” to include “the person who buys or hires the goods covered by the conditional sale, or any legal successor in interest of such person” (see A.R.S. § 44—301, subd. 2), clearly does not include the seller, either before or after he has assigned his rights and interest to a third party. The fact that the seller may assign his rights as seller and agree to be secondarily liable for the unpaid balance of the underlying obligation does not convert his position into that of the buyer and entitle him to the benefit conferred by the Act upon the buyer.

Our decision in Pacific Finance Corp. of California v. Burkhart, 56 Ariz. 383, 108 P.2d 380, is authority for the proposition that the seller-assignor is not the “buyer” within the meaning of the Uniform Conditional Sales Act. There, the defendant seller under an automobile conditional sales contract assigned all its interest thereunder and agreed that if the assignee were to retake possession of the automobile from the purchaser and deliver it to the seller, the seller would be liable to the assignee for the unpaid balance of the contract. After the purchaser defaulted on the contract, the assignee retook the automobile and delivered it to the seller. In reviewing the effect of the above transactions the Court stated:

“The defendant in the assignment in the case at bar agreed, if the property was repossessed and delivered to him, which of course under the rule of the Commercial Credit Co. case, supra [33 Ariz. 56, 262 P. 1], would discharge the purchaser from any further liability, that he himself would assume the payment of the obligations of the purchaser. This is more than a guaranty; it is an independent agreement to become the principal debtor under the circumstances set forth in the assignment.” 56 Ariz. at page 391, 108 P.2d at page 383.

The significant point of the Pacific Finance case is that the absence of a resale, although it discharged the buyer, did not relieve the seller-assignor of liability. The seller-assignor continued to be liable because it had agreed to be so notwithstanding the absence of a resale. The statutory section (now, A.R.S. § 44-326), which declares that no agreement made by the “buyer before or at the time of the making of the contract * * * shall constitute a valid waiver of the [resale] provisions,” was not considered to be applicable to the seller-assignor. That section would, however, have invalidated the same agreement if made by the buyer, because it was executed prior to the buyer’s default. See O. S. Stapley Co. v. Rogers, supra; Commercial Credit Co. v. Phoenix Hudson-Essex, Inc., supra; Waverly, Sayre & Athens Transp. Co. v. General Motors Truck Co., supra, and cases cited therein. The buyer is permitted to waive the resale provisions only by an agreement based on new consideration and made after default. See Adler v. Weis & Fisher Co., 218 N.Y. 295, 112 N.E. 1049; Mack International Motor Truck Corp. v. Thelen Trucking Co., 205 Wis. 434, 237 N.W. 75, 83 A.L.R. 952. See, generally, Annotation, 49 A.L.R.2d 15. Thus, the seller-assignor was held not to be the “buyer” or to be entitled to the rights of the buyer under the resale provisions of the Act.

The effect of the above conclusion—that only the buyer, and not the seller-assignor, is entitled to rely on the resale provisions of the Uniform Conditional Sales Act—is that the liability of Maestro herein continued, despite Wurlitzer’s nonstatutory resale, for three reasons.

First, when Wurlitzer repossessed and sold the phonographs, Stevenson had been released by Wurlitzer from all liability under the contracts and notes. At that time Stevenson had no further rights in the phonographs and, accordingly, had no interests which were protectable under the Uniform Conditional Sales Act and, particularly, under the resale provisions thereof. His status as a party interested in the conditional sales contract as a “buyer” under the Uniform Conditional Sales Act had ceased when he was released of all liability by Wurlitzer, which had succeeded to all the rights of the seller formerly held by Maestro. Thus, when Stevenson, the buyer, no longer had any resale rights which he could enforce, and when no one else was entitled to enforce those rights, Wurlitzer, similarly, had no duty to make a statutory resale. There can be no duty without a correlative right in someone else 'to enforce that duty; it is an illusory “duty” and therefore no duty at all. Maestro’s liability continued when Stevenson was released, not because of any provisions of the Uniform Conditional Sales Act, but because it had expressly agreed to be liable in that event.

Second, Stevenson’s agreement with Wurlitzer, reasonably construed, constitutes a waiver of the resale provisions of the Act. As noted above, the buyer may validly waive statutory resale by an agreement entered into after default and supported by new consideration. The instant agreement was, by its terms, executed after Stevenson was “again in default to” Wurlitzer. The $5,000 payment made by Wurlitzer to Stevenson clearly furnishes new and adequate consideration. Waiver of the resale, though not expressly referred to, is implicit in the provision that Stevenson will deliver the phonographs to Wurlitzer at their then location and “will recommend that the owner of the location continue to deal with you [Wurlitzer] in the same manner as the owner has dealtfe with us [Stevenson].” The agreement further provided that “the property is suitable to the location where it is installed and used * * Stevenson also agreed “to surrender to you [Wurlitzer] all our right, title and interest in and to each location * * In the light of these provisions and the fact that the agreement released Stevenson of “all claims and demands of whatsoever nature,” we conclude that Stevenson’s delivery of the phonographs to Wurlitzer constituted a waiver of the resale provisions of the Act.

Third, the contract assignments and note endorsements executed by Maestro constituted a consent or agreement by Maestro to be liable to Wurlitzer even though Stevenson, because of Wurlitzer’s noncompliance with the resale provisions of the Uniform Conditional Sales Act, is no longer liable on the notes. That such a consent is enforceable against the seller-assignor, such as Maestro, is clear from our decision in Pacific Finance Corp. of California v. Burkhart, supra. Lewis v. Esch, 155 Misc. 212, 279 N.Y.S. 77, holds to the same effect. There, the seller repossessed the property covered by a conditional sales contract but failed to sell it in accordance with the terms of the Uniform Conditional Sales Act. The court held that such failure rendered the buyers not liable, but that another defendant who guaranteed the buyers’ obligation,

“under the terms of his guaranty, is not in a position to take advantage thereof. He guaranteed payment and waived foreclosure and possessory remedies. The other defendants [the buyers] could not waive these requirements, but he could and did.” 279 N.Y.S. at page 80.

In the instant case Maestro agreed that Wurlitzer could “compound or release” Stevenson, could “release any and all rights against, enter into consolidating contracts with” Stevenson, and could hold Maestro liable without first proceeding against Stevenson. Although the above language does not expressly refer to a “discharge” of the buyer Stevenson, which here occurred by operation of law (see A.R.S. § 44-323), the terms “release” and “discharge” have been defined synonymously. See Black’s Law Dictionary, “Discharge,” “Release”; Albert’s Shoes, Inc. v. Crabtree Construction Co., Fla., 89 So.2d 491, 492; Friedman v. Lockheed Aircraft Corp., D.C., 138 F.Supp. 530, 533. As stated in Davison v. Rodes, Mo.App., 299 S.W.2d 591, 594:

“The word ‘release’ * * * [i]n its literal sense * * * means ‘discharge.’ ”

We conclude that the discharge of Stevenson was in the circumstances of this case within the intended scope of the written consents and waivers executed by Maestro in favor of Wurlitzer.

We hold that Wurlitzer’s nonstatutory resale of the phonographs and equipment did not relieve Maestro from liability on the conditional sales contracts and notes.

The inapplicability of the resale provisions of the Uniform Conditional Sales Act does not mean, however, that the creditor who repossesses property which is security for an obligation may appropriate the property to his own use or to the prejudice of the obligors. Where the creditor willfully or negligently loses, misapplies or harms the security, the obligation is reduced pro tanto. See Restatement of Security, § 132; Britton, Bills and Notes, § 292. The conditional seller, or his assignee, who' sells the property must “deal fairly so as to secure the best price reasonably possible * * * ” (Annotation, 49 A.L.R.2d 15, 57) and is “obligated to make it bring its fair market value and account * * * for the difference between the amount * * * owed it and the fair market value of the car” (Motor Contract Co. v. Johnson, 61 Ga.App. 735, 7 S.E.2d 320, 321). See also Ford v. Commercial Securities Co., 223 Miss. 736, 79 So.2d 253, 256, suggestion of error overruled 80 So.2d 12; Dearborn Motors Credit Corp. v. Hinton, 221 Miss. 643, 74 So.2d 739, 741. Thus, Maestro, as the party liable on the notes secured by the phonographs, was entitled to have their reasonable value applied to the balance due on the notes.

Appellants have not assigned as error on this appeal (although they did raise it in their reply brief for the first time) that the price at which Wurlitzer sold the repossessed phonographs and equipment did not properly represent the fair market value of the property. Such issue was raised and evidence was offered thereon at the trial, however, and was implicitly rejected by the finding of the trial court that the proceeds of sale were applied to reduce the amounts due on the notes. We hold that there is sufficient evidence in the record to support the conclusion of the trial court.

The above having disposed of all of appellants’ assignments of error, the judgment is affirmed.

STRUCKMEYER, C. J., and JACK L.‘ OGG, Superior Court Judge, concurring.

Note : Justice J. MERCER JOHNSON having disqualified himself, the Honorable JACK L. OGG, Judge of the Superior Court of Yavapai County, Arizona, was called to sit in his stead and participate in the determination of this appeal.